IN THE LABOUR COURT OF SOUTH AFRICA
Held in Johannesburg
Case No J647/99
In the matter between :
Applicant
and
Respondent
JUDGEMENT
ZONDO J:
[1] This matter was brought by Potch Speed Den, a firm/company by
which one Mr E. Rajah, the respondent, was previously employed. It
was brought on the 18th February 1999. The order that was sought
was one suspending the enforcement of an arbitration award that was
issued by the CCMA on the 2nd November 1998 between the same
parties. The suspension or stay of the enforcement of the award is
being sought pending the outcome of an application to review and set
aside such award. From time to time since the 18th February, the
matter was adjourned.
[2] From what I have said above it will be apparent that this is a matter in
which an arbitration award which had been issued against the
applicant was made an order of this Court in terms of sec 158(1)(c) of
the Labour Relations Act, 1995 (Act No 66 of 1995) ( “the Act” ). The
arbitration award was issued by the Commission for Conciliation,
Mediation and Arbitration ( “the CCMA” ). The award was issued in
favour of the respondent in a dismissal dispute between the parties.
[3] The question which has arisen in this matter is whether, once an
arbitration award has been made an order of Court, a review
application of such an “award” is competent. If it is competent, then
this Court must proceed to consider the applicant’s application on its
merits. If it is not competent, then, it seems to me, the reason on the
basis of which the applicant is seeking a stay of the enforcement of the
“award” falls away and the application should therefore not be
granted.
[4] The power of this Court to make arbitration awards orders of this
Court is to be found in sec 158(1)(c) of the Act. Sec 158(1)(c) says the
Labour Court may “make any arbitration award . . . other than a
collective agreement an order of the Court” . Sec 145(3) is also
relevant because it has been argued on behalf of the applicant that
even at this stage of the dispute, what the Court would be doing if it
granted the applicant’s application would be to stay the enforcement
of the award, as envisaged in sec 145(3) of the Act. In terms of sec
145(3) this Court “may stay the enforcement of the award pending
its decision” .
[5] The difficulty which confronts the applicant in this matter is that it
seeks to review the award of the CCMA in circumstances where this
award has been made an order of Court. In my view once an award has
been mad an order of Court, a change takes place in its legal status of
the award. The award becomes an order of that Court like any other
order of this Court. Partly that is why this Court tends to examine an
award carefully before it can make it its order. This Court does not
adopt the attitude that it will merely rubber stamp such awards.
However, that does not mean that this Court will examine every detail
of the award or that it seeks to satisfy itself whether it would have
made the same decision as the commissioner on the matter.
[6] Because this Court is a superior court which enjoys the same level and
status as the High Court, its decisions are not reviewable. Accordingly,
unless a contrary intention can be gathered from the provisions of the
Act, the position would be that such right as a party may have to take
the CCMA on review in respect of an award the CCMA has issued,
cases the moment the award is made an order of court and, so long as
the order of this court making such award an order of this court stands,
it would not be competent for this court to review such an “award”.
In fact it is wrong to speak of an award once an award has been made
an order of Court. It is more accurate to speak of an order of this
Court.
[7] In my view an applicant who finds himself in a position where he
seeks to review an award which has been made an order of Court
should first seek to have the order of this Court making the award an
order of Court rescinded or set aside (but not on review because that is
not competent) and then apply to this Court to review and set aside the
award or, as the case, may be, seek to rescind the award in the CCMA.
It would appear that in this matter the applicant cannot see its way
clear to making an application for the rescission of the order made by
this Court because it says it would be unable to satisfy the court that
such order was made in its absence. I do not intend going into the
issue whether or not the applicant has a right to bring an application to
rescind the order made by Mlambo J.
[8] With regard to sec 145(3) of the Act, I do not think that it supports the
submission made by the applicant, namely, that a review application is
competent in respect of an “award” that has been made an order of
Court. Making an award an order of this Court gives rise to certain
legal consequences. One of those is the one I have referred to above. I
think sec 145(3) contemplates a case where, after an arbitration award
has been made, the one party applies to this Court to stay an
application to make such an award an order of Court. At that stage one
can correctly speak of an award because by then the award has not
been made an order of the Court. This does not mean that this Court
has no power to stay the enforcement of its own orders once it has
issued them. Of course, it has. This would fall within the ambit of sec
158(1)(g) which empowers this Court to “deal with all matters
necessary or incidental to performing its functions in terms of this
Act or any other law” .
[9] Even if sec 145(3) does not contemplate what I say above it
contemplates or even if its ambit is wider than that, I am of the view
that it would not detract from the position as I see it that once an
award has been made an order of this Court, there can be no review of
the award which has been made an order of Court until at least the
order of this Court has been rescinded, or until it has in some way
been set aside (but not on review) or withdrawn. As the applicant does
not appear to intend making any application to have the order of this
Court rescinded or set aside, the review application it has filed is, in
my view, not competent. Accordingly it would serve no purpose to
stay the enforcement of the “award” when there is no prospect of the
applicant’s review application being successful as Mlambo J’s order
stands. In those circumstances the application must fail.
[10] In the premises the application to stay the enforcement of the “award”
is dismissed. There is to be no order as to costs.
R. M. M. ZONDO
Judge in the Labour Court of SA
3 March 1999